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SPEECH 



OF THE 



HON. FRANCIS B. FAY, 



LICENSE BILL 



April 7, 1868. 




BOSTON: 

WRIGHT & POTTER, PRINTERS, 4 SPRING LANE. 
1 868. 



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SPEECH 



Mr. President: — There is an old adage that forewarned is 
to be forearmed ; and, sir, I give notice that I am about to 
address the Senate upon the question now upon your table. 
Now, sir, as it is well known to most of the Senate that I have 
spent much more time in the counting-room than in the forum, 
and have devoted more time to the study of profit and loss, 
tare and tret, &c, than to rhetoric, therefore a plain statement 
of my views can only be expected. Again, sir, upon this 
momentous subject I desire to say nothing which I have not 
well considered, and I have therefore placed my thoughts upon 
paper, and trust senators will pardon me if I have frequent 
reference to my notes. I am encouraged to do this by the 
example set me by the learned and distinguished senator 
from Bristol. 

Mr. President, I am in favor of the bill now before us, and 
of the whole of it, I do not consider it perfect. Some of its 
provisions I would like to change, but the clauses to which I 
object, probably other senators consider the most important. 
I would not, therefore, change a word or letter. I would try 
the bill as it is one year, discover its defects, if any, and then 
correct them after trial. There is one section T think I shall 
never desire to amend, and that is the repealing section. 

Importance. 

The question before us is, in my humble opinion, one of the 
most important that will command our attention the present 
session. A question that will require all the wisdom, the 
exercise of all the calm, deliberate, dispassionate judgment 
that can be brought to bear upon it. 

It should not be a party question in any sense Our atten- 
tion should be confined to its moral, social, and philosophical 
aspects. 



All in Favor. 
Now, Mr. President, I trust and believe there is not a sen- 
ator at this board who is not in favor of temperance, and who 
is not prepared to labor for its promotion ; but the difficulty is, 
we honestly differ as to the best method to accomplish the 
object. This being the fact, it becomes our duty to exercise 
the largest charity for those who differ from us. But, I regret 
to say, this is not done by many honest but enthusiastic per- 
sons, who indulge in denunciation and bitter invective against 
those who do not subscribe to their dogmas. Now, sir, such 
epithets, in my estimation, are almost as pernicious in their 
effects as intemperance itself. They engender anger, strife, 
bitterness and contention, and virtually shut up the head and 
heart against all moral influences and sober reason. 

Position. 

Now, Mr. President, in order that what I may say may go 
for what it is worth, I desire, in a few words, to define my 
position. First, I have been a temperate man from my youth 
up. I suppose it will not do for me to say a temperance man, 
as I believe it is quite common to call all who do not take the 
pledge and belong to a temperance society by the euphonic, 
classic name of Rummie. 

Well, Mr. President, I never did either ; (my reasons I will 
give before I have done.) But, sir, I always have been, and 
still am, so far a temperance man ; that while it was the habit 
of most men in my younger days to drink spirit three times a 
day, I seldom drank three times per month. 

At present I use it only for medicine ; but, sir, as the 
expense of living is very high, including physicians' fees, I 
have prescribed for myself without the physician's recipe, and 
thus save the fee. The prescriptions average from five to ten 
times a year, and are generally homoeopathic doses ; and yet, 
sir, even with this moderate limit, I do not escape being called 
a Rummie by some of my (as I think,) intemperate neighbors ; 
not intemperate in the use of alcohol, but in almost everything 
else. As to the pledge, I never took it, principally for this 
reason. I never thought it the mark of wisdom to assume 
that I am as wise to-day as I ever may be, and thus bind 
myself for all future time. I hope, Mr. President, old as lam, 



to learn some things yet that I never knew before, and wish the 
liberty to profit by that knowledge. 

Prohibitory Law. 

I propose to attempt to show that no prohibitory law, human 
or divine, was ever executed. 

1. I have ever been opposed to the prohibitory law, because 
it makes war upon the most strongly marked, inherent, innate 
principles of human nature, excites the spirit of resistance, 
and thus, in effect, increases and intensifies the very evil it 
designs to abate. 

The zealous enthusiast may have his fine-spun theories, and 
may honestly advocate and support them, but the duty of the 
legislator is to reject all theories opposed to the principles of 
established facts, experience, and the nature of man. 

Now, Mr. President, according to my observation and experi- 
ence, no inconsiderable portion of mankind, especially the 
most ardent, are governed in their efforts more by their desires 
than by sound judgment. Their labors are based on hope, 
rather than on calm, deliberate conviction. They seem to 
imagine that in each case before them, all the lines of demar- 
cation, all previous views, habits, customs, propensities, and 
even nature itself, are to surrender to this acme, or philoso- 
pher's stone, which their superior wisdom has discovered. To 
doubt its infallibility they regard as wilful obstinacy or con- 
summate ignorance. 

One would almost think, by their zeal and persistency, that, 
in their opinion, the success of the proposed project would 
bring about the millennium ; that vice and error would be 
annihilated, and virtue and goodness would everywhere abound. 
Well, Mr. President, I am not so credulous. I take few things 
for granted. I suppose I may be regarded as a descendant of 
Thomas, one of the twelve who wanted to feel the print of the 
nails, and thrust his finger in the wound before he would 
believe. And, sir, all uncertain, doubtful, or quixotic schemes 
do not commend themselves to my judgment at first sight. I 
wish to apply the test of observation and experience ; of delib- 
erate investigation and reflection ; of well-known facts and 
established truths, before I yield a cordial assent. 



6 

2. Again, Mr. President, I am opposed to prohibition, 
because it is anti-republican, — contrary to the spirit of oar 
institutions. It encroaches upon the liberty guaranteed to us 
by the Declaration of Independence and the Constitution. 
They declare- " all men free and equal." Free to do what ? 
" To enjoy life, liberty, and the pursuit of happiness." Now, 
sir, it is true this law does not take " life," our present laws 
not permitting it, but I have sometimes feared that some of 
our bitterest temperance men, if they had the power, would 
crucify the rumseller, and think they were doing God service. 
Their low invective and denunciation would seem to justify 
that inference. Again, this law interferes with "liberty," 
inasmuch as it debars the individual from exercising his own 
judgment " in the pursuit of happiness,", when he neither 
abuses his own privileges or inteferes with those of others. It 
thus encroaches upon our natural, inalienable rights, by dic- 
tating to us what we shall eat and what we shall drink, or 
what we shall not drink. But it is said, Here is a great evil 
which we wish to cure. Very well, so far all right. But 
would it not be well to apply and confine the remedy where the 
evil exists ? If a man had a felon on his finger, would it be 
wise to poultice his whole body, and that of his whole family ? 
If one man has a (ewev, would you give jalap and calomel, and 
confine all the people on water gruel or chicken broth ? If 
one man in a town should commit a theft, would you shut up 
the whole people lest they should steal also ? If a man abuses 
his wife now and then, would you have a law prohibiting 
marrying at all, and compel us all to turn Shaking Quakers or 
Catholic priests ? If a few men are gluttons or gormandizers, 
would you institute a commissary in each town or school dis- 
trict to parcel out the food to each individual? That would 
be carrying out the principle of this law. 

Garden of Eden. 
I have said, Mr. President, that prohibition is in direct opposi- 
tion to one of the strongest natural propensities of human nature. 
Let us look back a little, and see what instruction we can get 
from history. The first resistance to prohibition of which we 
have any account was in the Garden of Eden. 'Now, sir, if our 
first parents, by this act of disobedience, entailed sin upon all 



posterity, it seems pretty clear to my mind, that the innate 
propensity to obtain forbidden fruit at all hazards came along 
with it, with a force and intensity which no subsequent changes 
of time, education, moral culture or refinement have been able 
to weaken or overcome. Now, sir, if we would reason from 
subsequent events, observation and experience, I think it may 
well be questioned whether the prohibition itself did not gen- 
erate the desire to disobey. From the multiplicity of beauties, 
the variety of fruits, the delightful objects with which the gar- 
den abounded, we may well imagine that this then innocent 
pair might have passed the fatal tree without particular notice, 
or, if observed, that the fruit would not have been so attractive 
as to induce them to make any effort to obtain it ; but being 
prohibited, their attention was especially directed to it, their 
curiosity excited, and the desire at once became irresistible to 
know what that fruit was which they were forbidden to touch. 
I am aware, Mr. President, it is said that the Serpent had 
much to do with that first rebellion, and I suppose most if not all 
Christian believers concur in that opinion. And sir, for one, I am 
inclined to think that the same Serpent, or one very much like 
him, has been operating upon the views, feelings, dispositions 
and passions of men, from that day to this, and I perceive no 
diminution of his influence. 

Ten Commandments. 

Another prohibitory law was the Ten Commandments, pro- 
mulgated to the Israelites from Mount Sinai. These were not 
human but divine laws ; and I suppose all will admit, they are 
as applicable to us as they were to the children of Israel. 
Well, sir, have they been effectual, in any age ? Has any 
nation or people obeyed their injunctions ? Have they any 
apparent effect in our day ? I presume I need not argue this 
point, as I suppose all will admit that they are violated by 
thousands every day. And so far as preventing the evils enu- 
merated, they are and always have been a failure. 

Now, sir, permit me to ask the prohibitionist, if the laws of 
God are not respected and obeyed, and cannot be enforced, 
although reiterated by human statutes, is it logical to suppose 
that a law based upon enthusiastic imagination, intemperate 
zeal, love of dictation and control, perhaps tinctured with a 



8 

very little pharisaical consciousness that " I am holier than 
thou," a law that is tyrannical in its nature, and interferes 
with our natural rights, can be enforced ? Is it the duty of a 
legislator to act upon the presumption that such a law is to 
promote the best interests of society, or be respected and 
obeyed by the people ? 

Mosaic Law. 
I might perhaps introduce here all the provisions of the 
Mosaic law, but I am aware it is contended that law was abro- 
gated by the Gospel, although the most sanguinary portion of 
it is engrafted into our statutes, and insisted on by its advocates 
as twin brother to the prohibitory law, both being indispensable, 
in their opinion, to save society from utter ruin. 

Koran. 
Another prohibitory law, I believe, is found in the Koran, 
forbidding the Mussulmen to drink wine, on the penalty of 
being refused admittance into Paradise ; but if our information 
is reliable, it is no better observed than the one on our statute 
book, although I have never learned that the Mahometans had 
any State constabulary to enforce obedience. 

Emperor op China. 
The emperor of China, some years ago, perceiving and dep- 
recating the pernicious and destructive effect of the use of 
opium, prohibited its use by an edict forbidding its importation, 
and affixing the penalty of the bowstring or the sack to all 
consumers,— a penalty a little more summary and effective than 
ours of confiscation, fine and imprisonment. And what was the 
result ? If report speaks the truth, while that edict was in force, 
so far from suppressing, or even lessening the use of the drug, 
the importation had increased from 700 to 4,000 chests. If this 
was the result with a people accustomed to acquiesce in des- 
potic rule, is it reasonable to presume that, among a people 
where the child draws the principles of liberty from its moth- 
er's breast ; where " life, liberty and the pursuit of happiness " 
are guaranteed to each individual ; where legislators are but 
the servants, and the people the sovereigns, that they will sub- 
mit to the exercise of such despotic power as is authorized by 
the prohibitory law ? 



To anticipate this, it would seem to me, is to believe that the 
spirit that animated the barons at Runymede, the Roundheads 
of Charles the First, and the leaders of the American Revolu- 
tion, has become extinguished, and well might the spirits of 
Hancock, Adams, Otis and Warren rise up and charge us with 
degeneracy and tame subserviency to an unwarrantable edict. 

Pilgrims. 

Our Puritan Fathers who came over from England are reputed 
to have fled from prohibitory laws, and they adopted the first 
democratic constitution that ever existed. Now, sir, for one, 
I am disposed to honor them for their virtues, privations and 
hardships, and for their introduction of republican principles ; 
but from what we learn of their subsequent intolerance, of 
their persecution of the Quakers, of Roger Williams, and all 
non-conformists to their dogmas, by their enacting laws forbid- 
ding " kissing on the Sabbath," or " wearing large petticoats 
or long hair," I have sometimes queried whether they were 
not influenced in coming over quite as much by will — because 
they could not rule at home — as by conscience. Notwithstand- 
ing their liberal constitution, by their acts they seemed as ear- 
nest to denounce, dictate and control as some of the warm advo- 
cates of the prohibitory law. Their ideas of liberty, it seems, 
were much like those of the Dutch justice, who, when asked if 
every man had not a right to think for himself, replied, " Yes ; 
every man has a right to think for himself if he thinks the 
same as the court." 

Discrepancy. 

We are told, Mr. President, that the prohibitory law is indis- 
pensable if we would prevent the alarming evils and miseries of 
intemperance. And, strange to say, we are told by the same 
parties that intemperance is fearfully on the increase. Now, 
Mr. President, I am not sufficiently versed in logic to discover 
the harmony of those two propositions. Perhaps some one may 
enlighten me. I have no doubt of the truth of the latter 
statement, that intemperance is on the increase, and that it 
will continue so while that law is on the statute book. 

Mr. President, what are the facts ? 



10 

Before that law was passed, there was probably not a distil- 
lery in the county of Worcester. Now, if report speaks the 
truth, there is one or more in most of the towns in the county. 
At all events, the intemperate men say they find no difficulty 
in getting all they want. 

Again, Mr. President. A man in the vicinity where I reside 
was suspected of selling liquor. His house was the frequent place 
of resort of those who were known to indulge, and they were 
often seen returning home extremely unwell, some even unable 
to walk without difficulty. Well, sir, the authorities entered a 
complaint, and summoned these supposed customers as witnesses. 
Now for the result. Each one testified that he never obtained 
any liquor there, and did not believe the defendant sold any. 
Whether they testified truly is not for me to say, but there 
being no evidence against him, of course the court discharged 
him. 

Anti-Masonry. 

Some forty years ago, Mr. President, there was a violent cru- 
sade against masonry. Morgan was abducted and murdered, (so 
it was said,) although I believe it is susceptible of proof that he 
escaped to Europe in a vessel belonging to a senator of this 
board. Masons were bound together by solemn oaths, to pro- 
tect each other under all circumstances, even murderers being 
" not excepted" and in the lodges the meetings were character- 
ized by drunken orgies and bacchanalian revels, where Satan 
reigned king. No mason was to hold any office of honor, profit 
or trust, (a kind of partial prohibitory law,) and all who were 
not masons, who did not join in the crusade, were denominated 
" Jacks," who were worse than masons. The term " Jack " was 
analogous to the term " Rummie " as applied to sober men, who 
do not join a temperance society and endorse the prohibitory 
law. Well, sir, I was a " Jack " because I would not denounce 
my masonic neighbors as murderers. Besides, Mr. President, 
as the gentleman with the cloven foot was the reputed " head- 
centre" of masonry, and not knowing whose hands I might fall 
into, I concluded to stand neutral, so I was called a " Jack." 

Well, sir, after awhile the fury of the anti-masonic monsoon 
had spent its force, the fever abated, having about exhausted 
the patient, and soon anti-masonry became one of the things 
that were. 



11 

I have read somewhere, Mr. President, that some metaphysi- 
cians — I believe Pythagoras was one — contended that when a 
man dies, his spirit is transmitted to some other person or 
animal, and I have sometimes thought that possibly there was 
some truth in the proposition, for immediately upon the decease 
of anti-masonry, the temperance movement had its birth, exhib- 
iting the same spirit of intolerance, denunciation and persecution 
which characterized anti-masonry. 

First Temperance Society. 
I remember that the first, or one of the first temperance 
societies in the Commonwealth was formed in a neighboring 
town to the one in which I then resided. They passed a reso- 
lution which breathed the same spirit of persecution and 
ostracism which we witness in later times, to wit : " No person 
who uses ardent spirits shall hold any office of honor, profit or 
trust where we can prevent it." That was their spirit of 
Christian kindness and brotherly love. 

Temperance Societies and Alliance. 

Mr. President, societies on most subjects at the present day 
seem to be all the rage, to keep society in anything like work- 
ing order. No social, moral or religious object can be attempted 
without a society or combination, bound together to act in con- 
cert. If we look at cause and effect, I think we shall find that 
all combinations are more or less, in their very nature, tyran- 
nical and despotic, and in effect pernicious ; except where 
extra physical or pecuniary force is indispensable. The very 
object of a combination is to exert an unnatural power and 
pressure, which is repugnant to liberty. Another evil is, that 
the society goes farther in its measures than any one would go 
by himself. Every man knows that he is carried along farther 
in a crowd than he would go voluntarily. Another evil is, 
that there is no personal responsibility. However unjust or 
improper the measure adopted may prove, no one will father it. 
Each member says, " Thou canst not say I did it." 

Again, these societies have seemed to annihilate all individ- 
uality of character. Too many now leave all thinking, all 
questions of propriety or expediency, to a few master spirits, 
who usually have more zeal than discretion. 



12 

Again, Mr. President, temperance societies present a false 
appearance. They exhibit an almost endless list of names ; but 
who really constitute the members proper ? Are not a large 
portion of them persons who have no rational idea of the 
subject, and of children, who do not know the meaning of 
temperance ? 

Again, the aim of these societies does not appear to be self- 
improvement, but to control their neighbors. Their efforts 
appear not so much directed to getting the beam out of their 
own eyes, as to picking the mote out of their brother's. 

Again, sir, the influence of these societies, where it is needed, 
is more pernicious than salutary. The rumseller and drunkard 
know that these efforts are aimed at them, to dictate and con- 
trol them. This awakens opposition and resistance. Now, sir, 
let a society of fifty, who as a society have not as much influ- 
ence, where it is needed, as one candid man, let them dissolve, 
and each member act for himself, and approach his erring 
neighbor in a friendly spirit, plead with him, urge and persuade 
him to desist. Would not such a course of fifty men acting 
without combination have an influence that, in most cases, 
would far exceed any produced by efforts as a society ? Now, 
Mr. President, I have always acted upon this principle. I have 
joined no society. I have signed no petitions for or remon- 
strances against coercive measures. I have said to my zealous 
temperance friends, If you can succeed I shall rejoice, but I 
have no faith in your policy, therefore cannot aid you. I have 
always adopted the Washingtonian plan, and by it have induced 
abstinence by sellers and drinkers, where fine and imprison- 
ment had only made the matter worse. And here let me say, 
that if the Washingtonians had been let alone, in my opinion 
intemperance would ere this have nearly disappeared from 
among us. 

But, sir, our zealous friends remind me of King Rehoboam, 
who rejected the counsel of the old men, and ten tribes revolted ; 
and a somewhat similar result was exhibited at the last 
November election. 

Laws. 
Some people seem to imagine, Mr. President, that laws are 
the panaceas that are to cure all the evils in society; but, sir, 



13 

laws in themselves have no curative or cleansing properties. 
They are but the record of the public will in a free country, 
and have no legitimate force or salutary effect against it. I 
think it may well be doubted whether any man was ever made 
moral, virtuous, religious or temperate by the simple force of 
law. Law restrains, controls and punishes the vicious offender, 
but does not reform him. His punishment may possibly con- 
vince him that justice has overtaken him, but this is not 
reformation. He would commit the same act again, but for the 
punishment ; and, sir — 

" A man convinced against his will, 
Is of the same opinion still." 

To be reformed he must have a conscientious conviction not 
only that the punishment was just, but that the act was wrong 
in itself; that goodness and virtue are inestimable blessings ; 
and be resolved to practice them for their value, and voluntarily 
to abandon the evil course. When thus reformed, he needs no 
law, he would not commit a crime if there were no law. In 
my opinion this conviction is seldom produced under the task 
or behind iron grates. The mind of the subject then dwells 
more upon the doctrine of malice and revenge than upon ethics. 
Statute law, in my opinion, can never be efficacious in a repub- 
lican government, unless it expresses the. deliberate judgment 
of the people, and its enactment is nothing more than a record 
of that judgment ; and it is fruitless and pernicious when it 
attempts to forestall or anticipate that opinion. Therefore, 
any statute enacted under excitement, by art or intrigue, 
bribery or corruption, contains the seeds of its own destruction. 

Itching Palm. 
It is very probable that I may be asked here, if I would see 
all these evils exist among us, and not make any efforts to 
prevent them. Well, sir, I readily answer, No. I deplore 
their existence, and have the same desire that others have to 
improve the order of things ; and yet while exerting myself, I 
am reminded that there is an intelligence infinitely above mine, 
and a power superior to the combined efforts of human nature, 
which overrules and controls the affairs of men. How far 
Divine Wisdom " permits evil that good may come" I know 



14 

not, or whether what we call evil, is or is not, included in the 
wise economy of Heaven, is a problem that I have not the 
presumption to attempt to solve. One thing is certain, good 
and evil, virtue and vice, do exist, and how goodness and virtue 
could be recognized, described or denned, or how there could 
be any merit in the practice of them, without their opposites, I 
must leave for Baconian metaphysicians and philosophers and 
learned theologians to explain. I will close my remarks by a 
quotation from the poet : — 

" Better for us, perhaps, it might appear, 
Were there all harmony, all virtue here ; 
But, 'tis replied, the first Almighty cause 
Acts not by partial, but by general laws ; 
Hear then the truth, 'tis Heaven each passion sends, 
And different men directs to different ends ; 
Extremes in nature equal good produce, 
Extremes in man concur to general use." 



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